[lbo-talk] Bloomberg News on Fitzgerald Probe

Michael Pollak mpollak at panix.com
Mon Oct 17 07:52:44 PDT 2005


[IMHO, this account is worth reading in its entirety, even for obsessives (while, actually I guess mostly for us). It contains excellent arguments and notes several delicious facts I hadn't thought of lately. For example, it notes in passing that, unlike an independent prosecutor, Fitzgerald reports to Attorney General Gonzales, who in theory has to approve all indictments. Saturday night massacre, anyone? And the last paragraph presents a delightful prospect: that if there are indictments, Wilson and Plame will most likely go ahead with a civil suit against Cheney and Libby -- which, under the current law -- *set in the Paula Jones case* -- would compel him to testify under oath while in office. (The legal reasoning behind the Jones decision was of course revealed by subsequent history to be completest nonsense. But it's certainly poetic justice.)]

[The headline below makes it look like Cheney might get indicted. But if you read the entire article, they make it very clear that "there is no indication of criminal charges against Cheney," and they explain why -- that it looks not that the criminal charges will be about obstruction of justice, not conspiracy to out an agent.]

[However the article also describes the real possibility that Fitzgerald might outline the role of Cheney as the organizer of the scheme in conjunction with issuing indictments of Rove and Libby -- charges this article argues are likely. That combination would be an amazing political blow.]

http://www.bloomberg.com/apps/news?pid=10000087&sid=aSuj1d8CcYAk&refer=top_world_news

Cheney May Be Entangled in CIA Leak Investigation, People Say

Oct. 17 (Bloomberg) -- A special counsel is focusing on whether Vice

President Dick Cheney played a role in leaking a covert CIA agent's

name, according to people familiar with the probe that already

threatens top White House aides Karl Rove and Lewis Libby.

The special counsel, Patrick Fitzgerald, has questioned current and

former officials of President George W. Bush's administration about

whether Cheney was involved in an effort to discredit the agent's

husband, Iraq war critic and former U.S. diplomat Joseph Wilson,

according to the people.

Fitzgerald has questioned Cheney's communications adviser Catherine

Martin and former spokeswoman Jennifer Millerwise and ex-White House

aide Jim Wilkinson about the vice president's knowledge of the

anti-Wilson campaign and his dealings on it with Libby, his chief of

staff, the people said. The information came from multiple sources,

who requested anonymity because of the secrecy and political

sensitivity of the investigation.

New York Times reporter Judith Miller, who has now testified twice

before a federal grand jury probing the case after spending 85 days in

jail for refusing to cooperate with Fitzgerald, wrote in yesterday's

New York Times that Fitzgerald asked her whether the vice president

``had known what his chief aide,'' Libby, ``was doing and saying''

regarding Wilson, a critic of the war in Iraq.

Fitzgerald has told lawyers involved in the case that he hopes to

conclude soon -- the grand jury's term expires Oct. 28, although it

could be extended -- and there is a growing sense among knowledgeable

observers that the outcome will involve serious criminal charges.

``Fitzgerald is putting together a big case,'' Washington attorney

Robert Bennett, who represents Miller, said on the ABC-TV program

``This Week'' yesterday.

Possible Charges

The charges could range from a broad conspiracy case to more narrowly

drawn indictments for obstruction of justice or perjury, according to

lawyers involved in the case. Charges are considered less likely on

the law that initially triggered Fitzgerald's probe, which makes it

illegal to deliberately unmask an undercover intelligence agent,

because of the difficulty in meeting that statute's exacting standards

for prosecution.

Lea Anne McBride, a Cheney spokesman, declined to comment yesterday on

whether the vice president, 64, has been contacted by Fitzgerald about

his status in the case, except to say: ``This is an ongoing

investigation, and we are fully cooperating.'' Randall Samborn, a

Fitzgerald spokesman, declined to comment. Calls to Robert Luskin,

Rove's attorney, and Joseph Tate, Libby's lawyer, weren't returned.

There's no indication Fitzgerald is considering criminal charges

against the vice president, who gave unsworn testimony to

investigators last year. One option for Fitzgerald is to outline his

findings about Cheney's role if he files a final report on the

investigation.

Questioned Officials

Fitzgerald, 45, has also questioned administration officials about any

knowledge Bush may have had of the campaign against Wilson. Yet most

administration observers have noted that on Iraq, as with most

matters, it's Cheney who has played the more hands-on role.

One lawyer intimately involved in the case, who like the others

demanded anonymity, said one reason Fitzgerald was willing to send

Miller to jail to compel testimony was because he was pursuing

evidence the vice president may have been aware of the specifics of

the anti-Wilson strategy.

And both U.S. District Court Judge Thomas Hogan and an appellate-court

panel -- including David Tatel, a First Amendment advocate -- said

they ruled in Fitzgerald's favor because of the gravity of the case.

Pace of Probe

Katy Harriger, a political scientist at Wake Forest University in

Winston-Salem, North Carolina, who has written extensively about

special-counsel investigations, said the pace and trajectory of

Fitzgerald's probe suggests it will end with the indictment of Rove,

Libby or both.

Harriger said she anticipates indictments in part because of the

special prosecutor's willingness to jail Miller. ``That's not

something you do unless you really have something more going on that

isn't obvious to the public,'' she said.

Larry Barcella, a former assistant U.S. attorney for the District of

Columbia, said the recent activity in the case suggests criminal

charges are likely, although not in connection with the 1982 law

making it illegal to disclose a covert agent's identity.

A more likely focus is possible ``false statements, conspiracy or

obstruction of justice,'' said Barcella, now a defense lawyer for the

Washington-based law firm of Paul, Hastings, Janofsky & Walker. ``It's

obviously not good that Rove and Libby have spent so much time before

the grand jury.''

An Active Participant

To make a case against Cheney as part of a conspiracy indictment,

Fitzgerald would have to show the vice president was an active

participant in a decision to smear Wilson, Barcella said. ``It's a

case most easily made if you can prove a person knowingly entered into

an agreement to do something illegal,'' he said. ``Beyond that, it can

be tricky.''

Fitzgerald's status differs in one potentially important respect from

the independent counsels who investigated alleged wrongdoing during

earlier administrations. They reported to a panel of appellate judges,

while Fitzgerald reports to Attorney General Alberto Gonzales, who at

least theoretically must approve any indictment.

Given the prospect of both protracted criminal cases and then civil

lawsuits, it now seems possible the issue will bedevil the final years

of Bush's presidency, much as the Iran- contra affair burdened

President Ronald Reagan's second term and the Monica Lewinsky scandal

plagued President Bill Clinton's.

No Leaks

While there have been virtually no leaks out of Fitzgerald's office,

and even the subjects of his investigation are unsure about his

intentions, White House officials and Bush supporters are fearful that

recent developments spell legal jeopardy for Rove, the central

strategist behind Bush's political campaigns and much of his

presidency, and Libby, a key architect of the Iraq war strategy.

When the investigation began, White House officials asserted that

neither Rove nor Libby played any role in the outing of Plame, and

both aides told Fitzgerald that they learned of her identity from

journalists.

In her Times account, Miller said she told Fitzgerald and the grand

jury that Libby, 55, raised the subject of Wilson's wife during a

meeting with Miller on June 23, 2003. That was before Wilson, 55, went

public in a Times op-ed piece with his accusation that Bush and his

aides had ``twisted'' intelligence findings to justify invading Iraq,

although administration officials knew he was privately critical.

Contracted Account

While Miller didn't say Libby had identified Plame as a covert agent,

her account calls into question Libby's assertion that he first

learned of Plame's identity from reporters.

Miller, 57, said she went to jail rather than testify because, unlike

other reporters, she didn't feel Libby had given her specific and

voluntary permission to speak about their confidential conversations.

She relented when Libby contacted her by telephone and letter last

month, saying he had always expected her to testify.

Those communications with Miller may pose legal problems for Libby.

His letter to her stated that ``the public report of every other

reporter's testimony makes clear that they did not discuss Ms. Plame's

name or identity with me.''

Miller wrote in her Times article that Fitzgerald asked her to read

that portion of the letter aloud to the grand jurors and asked for her

reaction to Libby's words. She said that part of the letter had

``surprised me because it might be perceived as an effort by Mr. Libby

to suggest that I, too, would say we had not discussed Ms. Plame's

identity. Yet my notes suggested that we had discussed her job.''

`Stupid Thing to Do'

Bennett, Miller's attorney, yesterday called that part of Libby's

letter ``a very stupid thing to do.'' Other lawyers suggested it could

become part of any obstruction-of-justice charge Fitzgerald might

bring.

Rove's testimony also has been contradicted by others, such as Time

magazine reporter Matt Cooper. He said his July 2003 conversation with

the White House aide focused more on Wilson and his wife than Rove had

testified, while adding Rove had not identified her by name. There is

also at least one discrepancy between Rove's version and that of

columnist Robert Novak, who first identified Plame as a Central

Intelligence Agency operative in July 2003, according to persons

familiar with their accounts.

Rove, 54, returned to the grand jury for a fourth time on Oct. 14 and

testified for more than four hours. His lawyer, Luskin, who has spoken

frequently with reporters, has gone from public optimism that his

client faces little legal danger to cautiously noting only that

Fitzgerald hasn't told them Rove is a ``target.''

Wilson's Assignment

Wilson was dispatched by the CIA in February 2002 to investigate

reports, since discredited, that Saddam Hussein's regime was trying to

buy uranium in Niger as part of a nuclear- weapons program. After Bush

cited similar reports in his Jan. 28, 2003, State of the Union speech

and the U.S. invaded Iraq in March of that year, Wilson began telling

some journalists anonymously that the claim was questionable.

That prompted behind-the-scenes administration attempts to discredit

Wilson. In his June 2003 meeting with Miller, Libby told her, in the

context of a conversation critical of the CIA, that Wilson's wife

worked for the spy agency, according to an account published in the

Times yesterday.

Wilson went public with his criticism on July 6, 2003. In his Times

piece, he concluded: ``Some of the intelligence related to Iraq's

nuclear weapons program was twisted to exaggerate the Iraqi threat.''

Talked with Reporters

Over the next week, Libby and Rove talked to reporters, on the

condition they not be identified, about Wilson's article and the fact

that his CIA-employed wife may have had a role in giving him the Niger

assignment.

Plame's identity was first published by Novak on July 14. He cited

``two senior administration officials'' as the sources of the

information that Plame, 42, suggested Wilson for the Niger trip. Novak

hasn't commented publicly on those sources.

Miller never wrote a story about Wilson or his wife -- although in one

of her notebooks, dated July 8, 2003, a notation appears for ``Valerie

Flame.''

One of the subplots is the role played by the New York Times. In

addition to Miller's personal account, the Times yesterday published a

separate 5,800-word piece that criticized both Miller and the way the

newspaper handled the story.

Never Saw Notes

The article reported the paper's publisher, Arthur Sulzberger Jr., and

its executive editor, Bill Keller, unequivocally supported their

reporter in her legal battle although ``they knew few details about

Ms. Miller's conversations with her confidential source,'' and ``did

not review'' her notes.

Miller, who wrote many influential pre-war war stories about Hussein's

purported weapons of mass destruction that the Times later

acknowledged were flawed, told the grand jury she recommended in 2003

that the newspaper pursue the Plame story. Jill Abramson, the

newspaper's managing editor, said Miller never made any such

recommendation.

In an interview yesterday, Wilson said that once the criminal

questions are settled, he and his wife may file a civil lawsuit

against Bush, Cheney and others seeking damages for the alleged harm

done to Plame's career.

If they do so, the current state of the law makes it likely that the

suit will be allowed to proceed -- and Bush and Cheney will face

questioning under oath -- while they are in office. The reason for

that is a unanimous 1997 U.S. Supreme Court decision ruling that Paula

Jones' sexual harassment suit against then-President Bill Clinton

could go forward immediately, a decision that was hailed by

conservatives at the time.

To contact the reporter on this story:

Richard Keil in Washington at dkeil at bloomberg.net

©2005 Bloomberg L.P. All rights reserved.



More information about the lbo-talk mailing list